SUPREME COURT JUDGMENT ON HINDUTVA

FLAWLESS

Judgment of the Supreme Court on the meaning of Hindutwa
has received mixed reactions as it has happened always
whenever the Apex Court delivered any important judgment.
It is widely welcomed by those who regard that Hindutwa
of Hinduism alone is the panacea for all the problems
arising out of moral degradation in every sphere of
national activity. On the other hand, those who regard
Hindutwa as religion are adversely commenting on the
judgment. They are expressing the apprehension that the
view may be misused for exploiting religion for politics
resulting in destruction of secular character of our
Nation and therefore it requires reconsideration by a
larger bench. It is also being criticised as contrary to
the Nine Judge Bench Judgment in Bommai's case in which
the Supreme Court reiterated that Secularism was an
element of the basic structure of our Constitution and
therefore an injunction against introducing caste and
religion into politics.

A careful reading of the judgment in Manohar Joshi's case
discloses that the view expressed by the Court that
Hindutwa or Hinduism is not religion and it is a way of
life comprising of noble values of life is based on
earlier decisions of the Court and is flawless and unexceptionable. In order to correctly appreciate the point
arising for consideration, we have to see as to what were
the questions which arose for consideration.

The precise questions which arose for consideration in
the batch of election cases were:

1) Whether there was an appeal to the voters to vote on
the ground of religion? and

2) Whether the contents of the speeches of the candidates
or their agents were such as would cause enmity among
citizens on the ground of religion? both of which amount
to corrupt practice within the meaning of Section 123 of
the Representation of People Act, 195 1.

The Contention of the Election Petitioners before the
High Court was that appeal to vote for Hindutwa was an
appeal to vote on the ground of religion and therefore a
corrupt practice. Their further contention was that
contents of speeches of Bal Thackerey in the Election
Meeting of Dr. Prabhu were such as would create feelings
of enmity between Hindus and Muslims.

The submission, on behalf of the respondents was that
certainly an appeal was made to vote for Dharma or Hindutwa or Hinduism which are all synonymous terms but that
was not an appeal on the ground of religion but an appeal
on the ground of culture which squarely falls within the
fundamental right or Article 29. The Bombay High Court
agreed that Hindutwa or Hinduism was culture falling
within Article 29, but held that the contents of the
speeches were such which answered the description of the
Corrupt Practice under Section 123 of the Act.

The submission of the appellants before the Supreme Court
was that the Hindutwa or Hinduism was no religion but it
was a way of life which incorporates values of life such
as respect for all religions. moral code of conduct in
every sphere of human activity evolved in this land from
most ancient times which inter alia include secularism.
In support of this, they relied on the two Constitution
Bench Judgments of the Supreme Court in the cases of
Yajnapurushdasji (1966 (3) SCR 242) in which the Court
held that Hinduism was no religion but away of life,
which view was reiterated in the case of Sridharan (1976
(4) SCC 489), The Court on consideration of the rival
contentions accepted the contention of the appellants.
Relevant passages from the aforesaid two judgments have
been extracted in the judgment. In the light of those
decisions and the copious material produced by the appellants, the Court concluded that Hindutwa or Hinduism
was not a religion but a way of life and therefore any
appeal to vote for Hinduism would not by itself constitute an appeal in the name of religion which is a corrupt
practice under the S. 123 of the R.P. Act.

The criticism that the Three Judge Bench in holding that
appeal to vote for Hindutwa was not an appeal on the
ground of religion, had ignored, overlooked and disregarded the Nine Judge Bench decision in S.R. Bommai's
Case is untenable, unjustified and uncharitable, because
the question whether Hindutwa or Hinduism was religion
and whether an appeal to vote for Hinduism was a corrupt
practice within the meaning of S. 123 of the R. P. Act
was not an issue which arose for consideration, or decided in that case. Therefore the said decision was not at
all apposite to the present case.

In Bommai's case, the most important principle expounded
was that secularism was an element of the basic structure
of our Constitution and therefore religion and caste
pollution of politics was anti-secular. Secularism is
certainly one of the founding faiths of our Constitution.
No one could or has taken exception to this.

There is, however, a criticism to the effect that as
Manohar Joshi had declared in an election speech that
Maharashtra would be the first Hindu State, it was antisecular and therefore setting aside of the election ought
to have been upheld. This criticism is equally untenable. It is only when there is an appeal to vote on the
ground of religion it becomes a corrupt practice under S.
123 of the R.P. Act. The Court having expressed its
displeasure for the statement, proceeded to point out
that as there was no appeal on the ground of religion, it
was not possible to hold that there was corrupt practice
falling within S. 123 of the R.P. Act which alone could
be the basis for setting aside an election. It should
however be pointed out that when Hinduism is no religion
and is a way of life, to say Hindu State is anti~secular
is wholly incorrect, and would be contradiction in terms.
Hinduism and Theocracy are sworn enemies, they cannot coexist just as light and darkness cannot. Hinduism is
secularism par excellence. It accepts and respects every
religion and recognises the right to practice any religion of every individual and prohibits discrimination
against any individual on grounds of religion in respect
of any matter. whereas theocracy is anti-secular and
subjects those who do not belong to State religion, to
various kinds of discrimination. The noble objectives
enshrined in the Preamble to the Constitution which are
incorporated in the fundamental rights are all the values
of life which are part and parcel of Hinduism. Hence
there is no substance in the criticism made against the
judgment that it was contrary to the Nine Judge Bench
Judgment in Bommai's case.

It is also significant that the Supreme Court has not
only administered a stern warning against making speeches
creating enmity among citizens on the ground of religion
but also held that the speech of Bal Thackerey did amount
to such corrupt practice. On that ground he was held to
be guilty of corrupt practice and on that basis the
setting aside of the election of Dr. Prabhu was confirmed. Thereby the Apex Court has clearly indicated
that if any person indulges in making appeal to vote on
the ground of religion or activities which create enmity
among different classes of people on grounds of religion,
he would meet the same fate as Dr. Prabhu.

Therefore the criticism levelled against the judgment is
devoid of any merit. On the other hand it is a Land Mark
Judgment in the democratic history of India as it puts an
end to the injustice to which Hinduism was being subjected to by its opponents by dubbing it as religious fundamentalism.